Month: January 2017

The following case brief was prepared by Brandon Singleton for this blog in anticipation of Justice Ginsburg’s visit in February. United States v. Virginiawas a seminal case about gender-based classifications at Virginia Military Institute. Writing for the majority, Justice Ginsburg used the Equal Protection Clause of the Fourteenth Amendment to cause the institution to admit 30 women in the fall of 1997. You can read a news article from the Washington Post about this first co-ed class.

Next week we will focus on a dissent that Justice Ginsburg wrote. See a picture of the collar Justice Ginsburg wears when she has a dissent in the Law Library display (“The Notorious RBG”) on Justice Ginsburg in the lobby.

United States v. Virginia, 518 U.S. 515 (1996)

Background:

The Virginia Military Institute (VMI) was established in 1839 as one of America’s first state military colleges, funded by the Commonwealth of Virginia. Its mission is to produce “citizen-soldiers, men prepared for civilian life and military service.” It accomplished that mission through extreme adversity. New cadets were known as “rats,” and, for approximately 7 months, underwent a trial known as the “rat line,” where they were exposed to physical and mental stress. To quote the Commandant of Cadets, Col. Bissell, [the rat line], “‘dissects the young student,’ and makes him aware of … ‘how far he can go with his anger, … how much he can take under stress, … what he can do when he is physically exhausted.’”

In 1990, VMI’s single-sex policy was finally challenged when a female high-school student, seeking admission to VMI, filed a complaint with the Attorney General. She alleged that VMI’s exclusively male admission policy violated the Equal Protection Clause of the 14th Amendment. She was one of 347 women who had sent inquiries to VMI, none had received responses.

Virginia argued that VMI’s “adversative” method of training was inherently unsuitable for women. It argued that, not only did single-sex education yield important educational benefits, but those benefits could not be made available to women without alterations that would necessarily destroy VMI’s program.

The Federal District Court ruled in favor of VMI, holding that a single-gender environment yields substantial educational benefits. But the 4th Circuit Court of Appeals disagreed. The appellate court found that the Commonwealth failed to show that VMI’s admissions policy advanced any state policy. Moreover, it was contrary to the state’s announced commitment to non-discrimination and diversity in education. As a remedial measure, Virginia proposed the creation of a parallel women’s program, called the Virginia Women’s Institute of Leadership (VWIL). The 4th Circuit accepted that proposal, calling it “substantively comparable.” In response, the Attorney General appealed the case to the Supreme Court.

Issues:

Virginia’s petition for separate male and female military schools raised two main issues: 1) whether Virginia’s exclusion of qualified women from VMI denied them equal protection under the 14th Amendment, and 2) if yes, what remedy was required?

Holding:

In a 7 to 1 decision, the Court held that VMI’s male-only admissions policy violated the Equal Protection Clause of the 14th Amendment. Justice Ginsburg, writing for the majority, drew a clear rule: under equal protection analysis, parties seeking to defend gender-based government action must demonstrate “exceedingly persuasive justification” for the action. Here, Virginia failed to meet that standard.

First, Virginia failed to show that the male-only admissions policy advanced a state policy. In fact, the policy was per-se counter to Virginia’s stated commitment to furthering diversity in education.

Furthermore, Virginia’s proposed remedy, the creation of a separate women’s institute, VWIL, was insufficient because it could not offer the same benefits to women that VMI offered to men. VWIL would not provide the same rigorous military training, academics, or alumni involvement that VMI provided. VWIL would not require students to wear uniforms, eat together, or participate in any activities typical of a military format. For these reasons, the 4th Circuit’s finding that VWIL and VMI were “substantively comparable” was misplaced, and the standard inconsistent with precedent. The appropriate remedy was to admit qualified women to VMI. Here, Justice Ginsburg plainly stated the appropriate standard: all gender-based classifications must be evaluated with “heightened scrutiny.” Borrowing from the ideas of constitutional historian, Richard Morris, Justice Ginsburg wrote that, “a prime part of the history of our Constitution is the story of the extension of constitutional rights and protections to people once ignored or excluded.” Here, “there is no reason to believe that the admission of women capable of all the activities required of VMI cadets would destroy the Institute rather than enhance its capacity to serve the ‘more perfect Union.’”

This month, a reporter working for a conservative political publication relied on the Open Records Act to obtain “a copy of each email (inbound, outbound, deleted, or double deleted) for the university email accounts of Professor Andrea A. Curcio at the University of Georgia and [a colleague who also signed the letter] from the dates of December 15, 2016, to and including January 3, 2017, which includes any of the keywords “Sessions,” or “Jeff Sessions” or “Attorney General.” According the press accounts, similar requests was received by university counsel for law professor signatories working at other public institutions.

The publication is relying on the state versions, what is commonly referred to as open records laws. Some states label them open information laws or public information acts. In Hawaii, our version is codified at Haw. Rev. Stat. 92F. Regardless of what the popular name of the law is, the concept is the same: public employees are subject to the same open records laws as every other public employee in his state or open information laws that make emails and other written documentation of agencies and individuals who work for those agencies subject to public inspection.